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the Brady restructuring. 39 In 1999, however, Elliott managed to obtain a prejudgment attachment against Peruvian assets used for commercial purposes in the U.S. 40 In June 2000, Elliott was awarded a US$57 million judgment against Peru. When it came to enforcing this ruling, Elliott turned to what was at that time a novel tactic. Instead of seeking to attach assets directly owned by Peru, it targeted payment ﬂows from Peru to its creditors. Elliott was aware that Peru was obliged to make a payment in September 2000 to holders of the external bonds Peru had issued to restructure its old bank debt (“Brady Bonds”). That payment was to ﬂow through the Chase Manhattan Bank, in its capacity as the ﬁscal agent for the Brady Bonds, and would eventually be credited to bondholder accounts maintained with the Euroclear System in Belgium and the Depository Trust Company (“DTC”) in the United States. In an effort to intercept the Brady Bond payment, Elliott applied and obtained on 26 September 2000, 41 from the Court of Appeals in Brussels (8th Chamber), which reversed a previous ruling from the Commercial Court, 42 a restraining order against Euroclear with respect to funds Peru was going to transfer through its paying agent. 43 In order to substantiate its claim, Elliott made a novel argument based on the pari passu clause included in the bond documentation. The pari passu clause,
39. In another case, another creditor of Peru (Pravin Bank Associates) has also requested summary judgment against Banco Popular del Peru. In a ﬁrst decision, the United States District Court for the Southern District of New York granted a six-month stay to allow the orderly completion of Banco Popular’s Peruvian liquidation proceedings (see Pravin Banker Assocs., Ltd. v. Banco Popular del Peru, 165 B.R. 379 (S.D.N.Y.1994) ("Pravin I "). The same court granted an additional stay of two months later on, in order to facilitate Peru’s ongoing negotiations with the Bank Advisory Committee under the Brady Plan (See Pravin Banker Assocs., Ltd. v. Banco Popular del Peru, 1995 WL 102840 (S.D.N.Y. Mar. 8, 1995) ("Pravin II"). After the end of the two months period, the court ﬁnally granted Pravin’s motion for summary judgment, thereby allowing enforcement of the debt (See Pravin Banker Assocs. Ltd. v. Banco Popular del Peru, 895 F.Supp. 660 (S.D.N.Y. August 24, 1995) ("Pravin III"). In January 1996, judgment was entered for Pravin for an amount in excess of USD 2 million (See Pravin Banker Assocs. Ltd. v. Banco Popular del Peru, 912 F.Supp. 77 (S.D.N.Y.1996) ("Pravin IV "). The Court of Appeal for the second circuit refused to dismiss or stay the proceedings until the completion of the negotiations. It also refused to stay the proceedings or the execution of the judgment during the course of the Brady negotiations: Pravin Banker Associates, Ltd. v Banco Popular del Peru and the Republic of Peru, 109 F.3d 850 (2d Cir. 1997). 40. Elliott Associates LP v. Banco de la Nacion and the Republic of Peru, 194 F.3d 363 (2d Cir 1999). 41. Court of Appeal of Brussels (8th Chamber), 26 September 2000, General Docket n° 2000/QR/ 92, unpublished. 42. President of the Commercial Court of Brussels (unpublished opinion of 22nd Sept. 2006). The President denied the motion for lack of urgency. 43. The order was formally directed at Morgan Trust, which at the time operated the Euroclear system. Elliott had ﬁrst obtained the exequatur of the US judgment ordering Peru to satisfy its obligations under the bonds.

Droit des affaires - Insolvabilité des États et dettes souveraines -1

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